COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

RIDGE NATURAL RESOUR CES, L.L.C, CALVIN SMAJSTRLA, CH RISTOPHER HAWA, and WILSON HAWA , Appellants,

v. DOUBLE EAGLE ROYALTY, L.P., Appellee. §

§ § § § § § No. 08

- 17

- 00 227

- CV

Appeal from the 109th District Court of Winkler County, Texas (TC# DC 17

- 17111)

DISSENTING OPINION In this case, the majority identifie d the initial step as necessarily deciding whether Double Eagle challenge d the contract formation of the arbitration agreement itself when it resisted compelled arbitration in the trial court

. Because the majority confirms that Double Eagle signed the agreement at large, it then determines that prima facie proof of contract formation was met initially and no argument on formation was actually asserted

. Based on the authenticity of the signature, the m ajority then shift ed the burden of proof onto Double Eagle to negate the validity of the arbitration agreement itself as the party resisting arbitration. Because I disagree , respectfully I dissent

. Contrary to the majority’s approach, I would conclude that Ridge Natural Resources (Ridge) bore the burden of establishing the validity of th e arbitration agreement in itially , and in2

that regard, it failed to show the agreement contained material terms that were definite and certain as to the arbitrat ion organization chosen and the governing rul es to apply

. Moreover, b ecause I conclude there was a failure of contract formation as to the arbitration agreement itself, I would
not reach the merits of the affirmative defense of unconscionability

. The determinative factor is not whether the contract was signed, but rather, whether it was properly formed. Being that Ridge sought to enforce arbitration, the burden of proof remained with it to establish proper contract formation.
As is easily recognized, in paragraph 5 of the parties Oil & Gas Royalt y Lease, there are two sentences that are directly in conflict. R egard ing the parties’ agreeing to submit t o arbitration,

o ne sentence requires the American Arbitration Association (AAA), and in another sentence , it requires submission to JAMS , 1 a different organization widely known by its four

- letter acronym . No other term or provision is included identifying how the parties’ agreed to prioritize or choose among either of these two organizations. T he majority identifies these conflicting sentences as “troubling as an interpretational matter [.] ” [Emphasis in orig.]

. I t concludes, however, that the issue is not “assigned for our review , ” and then discusses instead the unconscionability arguments raised against enforcement. To the extent the major ity implicitly presumes the validity of t he arbitration agreement itself , as a threshold issue, I disagree with th at approach

. Instead, I would conclude that the purported arbitration agreement does not qualify as a properly formed contract. In my view, t he ambiguity created by the requirement that two different arbitration organization s

— AAA and

1 JAMS is an acronym for Judicial Arbitration and Mediation Services, Inc. (J•A•M•S). See https://www.jamsadr.com

- /about

- jams/ , last accessed August 10 , 2018; Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 578 n . 19 (Tex. 2014)

.3

JAMS

— must both administer and govern the parties’ arbitration proceeding is an irreconcilable issue that renders the arbitration agreement itself invalid as a matt er of law

. Given the absence of clear and unmistakable evidence that the parties’ intended to arbitrate

— but instead inserted mandatory language requiring use of two mutually exclusive arbitration organization s

— I view the arbitrability of their controversy as being unsupported by a validly formed, binding arbitration agreement. Thus, the affirmative defense of unconscionability is not yet implicated in terms of contract enforceability. Because a lawful basis exists to deny the motion to compel arbitration , I would affirm the trial court ’s ruling

. I. Ridge carried the Burden of Establishing the Validity of the Purported Arbitration Agreement As the party seeking to enforce the arbitration agreement , Ridge carried the burden of establishing that the ar

bitration agreement was valid and enforceable. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003) (a party attempting to compel arbitration must establish (1) a valid arbitration agreement and (2) that the dispute in question falls within its scope ) ; United Rentals, Inc. v. Smith , 445 S.W.3d 808, 812 (Tex.App.

-- El Paso 2014, no pet.). A valid agreement to arbitrate is “ a settled, threshold req u irement to compel arbitration. ” In Estate of Guerrero , 465 S.W.3d 693, 699 (Tex.App.

-- Houston [14th Dist.] 2015, pet. denied) (citing In re Kellogg Brown & Root, Inc ., 166 S.W. 3d 732, 737

- 38 (Tex. 2005)(orig. proceeding)) ; see also First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S. Ct. 1920, 1924, 131 L.Ed.2d 985 (1995)(holding that , when deciding whe ther the parties agreed to arbitrate, “courts generally .

. . should apply ordinary state

- law principles that govern the formation of contracts”).4

A presumption favoring arbitration arises “ only after the party seeking to compel arbitra tion proves that a valid arbitration agreement exists.” In re Kellogg Brown & Root, Inc. , 166 S.W.3d at 737 ( quoting J.M. Davidson, Inc. , 128 S.W.3d at 227) ; see also Jody James Farms, JV v. Altman Group, Inc. , 547 S.W.3d 624, 631 (Tex. 2018) (citing First Options , 514 U.S. at 944); see also 9 U.S.C. A. § 4 (West 2009) (the court shall order the parties to arbitration “upon being satisfied that the making of the agreement for arbitration ... is not in issue”). If the opposing party resists the arbitration, as Double Eagle did, the trial court must then determine whether a valid agreement to arbitrate exist s . J.M. Davidson, Inc ., 128 S.W.3d at 227 (citing
T EX .C IV .P RAC .&R EM .C ODE A NN
. § 171.021 )

. “[W]hen we are c alled upon to decide whether the parties have agreed to arbitrate, we do not resolve doubts or indulge a presumption in favor of arbitration, because no party may be forced to submit to arbitration in the absence of sufficient showing that the parties ente red into a valid and binding arbitration agreement.” Wright v. Hernandez , 469 S.W.3d 744, 751 (Tex.App.

-- El Paso 2015, no pet.). The trial court's determination of the arbitration agreement's validity is a legal question subject to de novo review.
J.M. Davidson, Inc., 128 S.W.3d at 227

. Here, the record shows that after Ridge moved to compel arbitration, Double Eagle challeng ed the validity and enforceability of the arbitration agreement itself on several grounds

a ssert ing it was internally inconsistent, fundamentally unfair, unconscionable, and integral to a scheme of fraud. Pertinent to the validity of the agreement , Double Eagle raised the argument that the arbitration agreement was “ ambiguous ” in light of conflicting provision s that require d two5

different organizations

— American Arbitration Association (AAA) and JAMS

— to administer the arbitration. 2 Excerpted as follows, the arbitration provision included the following sent ences : If the mediation

. . . does not resolve any such dispute, the parties agree that all disputes between the parties shall be resolved solely by binding arbitration administered by the American Arbitration Association [AAA] in accordance with its commercial arbitration rules pursua nt to the Texas General Arbitration Act.

* * * The arbitration shall be administered by JAMS pursuant to its C omprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. [E mphasis added ].
In support of its argument, Double Eagle provided excerpts of the rules and procedures of both AAA and JAMS as an exhibit attached to its response. Although Double Eagle pointed out this ambiguity in both its written response to Ridge’s motion to compel arbitration , and during the trial court’s hearing on Ridge’s moti on, Ridge did not directly respond to the argument raised about both AAA and JAMS being named as mandatory administrators of the arbitration, nor otherwise negate th e ambiguity , either in its written reply to Double Eagle’s response or during the hearing on its motion

. 3 Instead, without addressing how to harmonize the mandatory

2 I recognize that in its written response to Ridge’s motion, Double Eagle raised this argument in the context of asserting that Ridge had substantially invoked the judicial pro cess by engaging in extensive discovery, and had thereby waived the right to invoke the arbitration agreement, Double Eagle made an extensive argument regarding the differences between the Texas Rules of Civil Procedure, the JAMS rules and the AAA rules wi th regard to the amount of discovery allowed under each set of rules, but noting that the arbitration agreement was “ambiguous” with respect to which rules would apply to the arbitration. During the hearing, Double Eagle expressly pointed out the conflict in the agreement with regard to which organization would administer the arbitration.

3 In its reply to Double Eagle’s response, Ridge addressed the primary arguments raised by Double Eagle, and then simply stated, without further explanation, that the arbitration agreement was “neither ambiguous nor hidden” in the Oil and Gas Royalty Lease.6

provisions, Ridge simply argued the agreement was valid and asserted the underlying dispute fell squarely within its scope. Although the trial court did not make any findings to explain why it denied Ridge’s motion to compel arbitration, on appellate review, this C ourt is required to uphold the trial court’s decision based upon any valid legal theory that Double Eagle argued before the trial court. See Amateur Athletic Union of the United States, Inc. v. Bray , 499 S.W.3d 96, 102 (Tex.App.

-- San Antonio 2016, no pet.) (when a trial court makes no specific findings or conclusions in support of its order denying a motion to compel arbitration , the reviewing court must uphold the trial court's ruling if there is a sufficient basis under any legal the ory asserted in the trial court)(citing In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984)(per curia m )(citing Las siter v. Bliss, 559 S.W.2d 353, 346 (Te x. 1977)). Although not applicable here, a court may conclude that an arbitration agreement is ambiguous even in the absence of such a pleading by either party of the suit

. J.M. Davidson, Inc. , 128 S.W.3d at 231 (ci ting Sage St. Associates v. Northdale Const. Co ., 863 S.W.2d 438, 4 44

- 45 (Tex. 1993) ). At trial, even though Double Eagle primarily challenged the enforceability of the arbitration agreement based on unconscionability, nonetheless, in the alternative, it also argued the agreement was inherently ambiguous and provided excerpts from the rules of both AAA and JAMS to illustrate discovery differences. In its opening brief, Ridge did not address the inclusion of conflicting arbitration organizations in the pur ported arbitration agreement even though the ambiguity established a potential basis for the trial court’s denial of its motion. S ee Sage St. Assoc. , 863 S.W.2d at 444

- 45 (holding a court may conclude that a contract is ambiguous even in the absence of such a pleading by either party)

. After Double Eagle responded with argument and authorities about the7

ambiguity , Ridge replied that Double Eagle never provided an example of how the AAA rules and the JAMS rules were inconsistent. Putting aside the merit s of its reply, it seems that Ridge perceived Double Eagle’s argument as pertaining only to unconscionability claims

— and therefore, not contract formation

— and thereby shifted the burden to Double Eagle to prove the rules were in conflict as an affirmative defense

. Notably, Ridge provided no authority for its position. Following Ridge’s lead, the majority presumed the validity of the arbitration agreement despite recognizing that the conflicting terms presented a n ambiguity on potentially material terms

. Based on criticism of briefin g, the majority concluded that Double Eagle failed to adequately develop the ambiguity issue as a challenge to contract formation and cit ed as authority our recent opinion in Hogg v. Lynch, Chappell & Alsup, P. C ., ___ S.W.3d __ _, 2018 WL 2077668, at *4

– * 5 (Tex.App.

-- El Paso May 4, 2018, no pet. )

. Contrary to the majority, I view Hogg a s not applicable to Double Eagle , in this instance , considering that briefing concerns in Hogg were addressed to the appellant of the case , and not to the party responding as appellee. Id

. Pursuant to briefing requirements of an appellee, Double Eagle merely needed to “respond to the appellant’s issues or points,” as presented in the appellant’s brief. T EX .R.A PP
. P 38.2(a)(2). To the exten t that Double Eagle briefed its response, the majority nonetheless recognize d that Double Eagle was conten d ing , first, that the inclusion of both AAA and JAMS created a n ambiguity , and second, that it render ed the arbitration agreement unenforceable on the alternative ground that there was no meeting of the minds with respect to th e arbitration organization that was named in the agreement to govern the parties’ proceeding

. As for authorities, Double Eagle cited Fort Worth Independent School District v. City of Fort Worth , 22 S.W.3d 831, 846 (Tex. 2000), for the general proposition that a contract that lacks agreement on material terms is not binding or8

enforceable . Second ly , it also cited Flores v. Nature’s Best Distrib., LLC , 7 Cal.App.5th 1, 212 Cal.R ptr.3d 284 (Cal. Ct. App. 2016) , as illustrative of the contract principle that an arbitration agreement is rendered unenforceable when it contains a n a mbiguity with regard to the rules the parties’ intended to govern the ir arbitration proceeding

. In my v iew, regardless of distinctions that may be made about Double Eagle’s authorities , the fact remains here that Double Eagle challenged the agreement based on its ambiguity , and the trial court ruled in its favor. As much as I agree that D ouble Eagle could have expended more effort on elaborating , nonetheless, as a matter of law , I find the con f lict of naming two different organizations with arbitration clauses that are both mandatory yet exclusive, with neither given priorit y , a resulting ambiguity that is self

- evident and patently obvious

. Given that Ridge shouldered the burden to establish (1) that a valid agreement existed in the first instance, and (2) that the trial court erred in its ruling , I view Double Eagle’s response as far less important than the briefing responsibilities required of Ridge

. Ridge carried the initial burden to establish an arbitration agreement with definite and certain terms. See J.M. Davidson, Inc., 128 S.W.3d at 227 ; see also Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237 (Tex. 2016)

. Because t he trial court ruled against Ridge, I would apply Hogg ’s briefing standard to it. To the extent Ridge made conclusory assertions about the validity of the arbitration clause

— without negating the ambiguity of req uiring both exclusivity and use of both AAA and JAMS

— I would conclude that it was Ridge, and not Double Eagle, that failed to adequately brief the issue, either in its opening brief or in its reply. Accordingly, I would not overlook the ambiguity based on Double Eagle having failed to adequately brief the issue ; i nstead, as a question of law for the court, I would consider the merits of whether the terms were ambiguous9

pursuant to established contract principles , as the ambiguity presents a potential basis of s upport for the trial court’s determination that the arbitration agreement was unenforceable.

There Must be a Meeting of the Minds on all Material Terms of an Arbitration

Agreement B efore it will be Enforced Although declining to address the merits of the ambiguity , the majority nonetheless recognizes that it exists and describes it as a “ tr oubling” issue

. As the majority acknowledges , a fai lure to agree to “vi tally important” terms in an arbitration agreement

— as in any other contrac t

—

m a y constitute a failure of contract formation at large

. “A meeting of the minds is necessary to form a binding contract .” Lucchese Boot Co. v. Rodriguez , 473 S.W.3d 373, 386 (Tex

. App.

- - El Paso 2015, no pet.) ( quoting David J. Sacks, P.C. v. Haden , 266 S.W. 3d 447, 450 (Tex. 2008)); see also Fischer, 479 S.W.3d at 237 (a contract must address essential and material terms with “a reasonable degree of certainty and definiteness.”)(citing Pace Corp. v. Jackson, 155 Tex. 179, 284 S.W.2d 340, 345 (1955)); Wells

v. Hoisager, ___ S.W.3d ___ , 2018 WL 1181311, at *5 (Tex. App.

-- El Paso Mar. 7, 2018, no pet.)(recogniz ing the general principle that the terms of a contract must be sufficiently definite and agreed to by the parties before it can be enforce d )

. “[I]f the contract is subject to two or more reasonable interpretations after applying the pertinent rules of construction, the contract is ambiguous, creating a fact issue on the parties' intent.” J.M. Davidson, 128 S.W.3d at 229. “Only where a contract is ambigu ous may a court consider the parties' interpretation and admit extraneous evidence to determine the true meaning of the instrument.” Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am. , 341 S.W.3d 323, 333

– 34 (Tex. 2011)

. T he majority recognizes , as do I, that the arbitration agreement itself lack s any basis for reconciling the two conflicting provisions. Thus , there is no valid means for a court to determine10

which of the two provisions the parties ’ intended to apply to the ir arbitration proceed ing

. See Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S. W.2d 587, 589 (Tex.1996) ( a contract is ambiguous if it is subject to “two or more reasonable interpretations after applying the pertinent rules of construction

. . . .” ). Stated another way, i f we were to select one of these two conflicting provisions over the other (i.e. AAA over JAMS; or JAMS over AAA) , we would in effect be re - writing the parties’ agreement ; yet, we are prohibited. See generally Lucchese Boot
Co. , 473 S.W.3d at 383

– 84 (refusing to read an unwritten clause into an arbitration agreement); see also Grimes v. Walsh & Watts, Inc., 649 S.W.2d 724, 727 (Tex.App.

-- El Paso 1983, writ ref'd n.r.e.)(courts cannot read implied provisions into contracts absent evide nce the covenant “so clearly within the contemplation of the parties that they deemed it unnecessary to express it”); Matter of Cmty. Med. Ctr., 623 F.2d 864, 866 (3rd Cir. 1980) (“[T]he court will not make a different or better contract than the parties th emselves have seen fit to enter into

. . . .”). B y selecting two separate arbitration organizations to administer the parties’ arbitration , and by selecting two separate sets of governing rules to apply to the arbitration, I conclude the arbitration agreement is ambiguous

. See Sage St. Associates , 863 S.W.2d at 445 (a court can decide whether a contract is ambiguous as a question of law ). The question remains w hether these conflicting provisions related to terms that were material and essential to t he parties’ agreement such that a failure to agree would rende r the agreement unenforceable. A contract need only be definite and certain as to those terms that are “material and essential” to the parties’ agreement. Fischer , 479 S.W.3d at 237 (citing Radford v. McNeny, 129 Tex. 568, 104 S.W.2d 472, 475 (1937); T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992)). Under Texas law, material and essential terms are those that11

parties would reasonably regard as “ ‘vitally important ing redient [ s ] ’ of their bargain.” Fischer , 479 S.W.3d at 237

. The question of wh ich terms can be considered “material” to a contract must be determined on a “case

- b y - case basis,” and therefore, “ [ e ] ach contract should be considered separately to determine i ts material terms.” Id

. For two related reasons, t he majority concludes it is not able to determine whether the conflicting provisions are material

. First, it blames Double Eagle ’s briefing for failing to explain the materiality of having two arbitration organizations named in the arbitration agreement. Second, while recognizing that there could in fact be relevant di fferences between the governing rule s of the two organization s , the majority concludes that Double Eagle failed to include analy sis sufficient to “place the for mation issue before the Court.” For the following reasons, I disagree.

The Materiality of the Arbitration Organizat ions’ Governing Rules As stated before, t he purported arbitration agreement provides the following two
statements: first, that “ the parties agree that all disputes between the parties shall be resolved solely by binding arbitration administered by the American Arbitration Association [AAA] in accordance with its commercial arbitration rul es ;” and, second, that “ [ t ] he arbitration shall be administered by JAMS pursuant to its C omprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. ” When an arbitration agreement states that the arbitrati on is to be governed by the rules of

an arbitration organization, those rules are implied into the terms of the parties’ arbitration agreement to the extent that they do not conflict with the express terms of the agreement

. Americo Life, Inc. v. Myer, 440 S.W.3d 18, 24 (Tex. 2014) (when an arbitration agreement incorporates by reference outside rules, “the specific provisions in the arbitration agreement take precedence and12

the arbitration rules are incorporated only to the extent that they do not conflict with the express provisions of the arbitration agreement.” ) (citing Szuts v. Dean Witter Reynolds, Inc., 931 F.2d 830, 832 (11th Cir.1991)); see also Schlumberger Tech. Corp. v. Baker Hughes Inc. , 355 S.W.3d 791, 803 (Tex.App.

-- Houston [1st Dist.] 2011, no pet.)(holding that language in an arbitration agreement stating that the arbitration is to be administered by an arbitration organization pursuant to the organization’s rules incorporates the organizati on’s rules into the agreement). In the trial court, Double Eagle provided an example of how those two sets of rules differed, expressly pointing out that AAA and JAMS have different governing rules relating to the parties’ ability to obtain discovery during the arbitration process. T he record shows that t h e rules governing the Expedited Procedures under JAMS indicate that the parties have the right to make “reasonable” document requests, and the right to limited e - discovery , subject to limits imposed by the arbitrator

. JAMS rules provide for a discovery period for “percipient discovery” of up to 75 days after the parties have had a preliminary conference , and up to 105 days after the conference for “ expert discovery. ” These rules allow for one deposition per side, unless the arbitrator decides otherwise, but prohibit expert depositions when a written expert report has been produced , unless good cause is shown. In contrast, as Double Eagle pointed out in the trial court, the AAA C ommercial R ules provide the arbitrator with almost total discretion to cont rol the discovery process. In particular, the AAA Commercial Rules provide that the arbitrator “manage [s] any necessary exchange of information,” and “may,” on a party’s application, require the parties to exchange documents, and “may” order depositions, in its discretion, but only in “exceptional cases’” and “upon good cause shown.” Therefore, although discover y under JAMS is limited in nature, the JAMS rules provide13

express terms and some assurance that the parties will be able to conduct a minimal amo u nt of discovery prior to arbitration , while the AAA rules provide discovery less explicitly defined subject to the arbitrator’s discretion. In the court system, d iscovery rights are recognized as being fundamental ly important to allowing parties to understand the true nature of the facts underlying their dispute , to prepare for trial , and to avoid the prospect of a trial (or hearing) by “ambush.” See, e.g., Reid Rd. Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd

. , 337 S.W.3d 846, 851 (Te x. 2011)

. Moreo ver, parties in a civil case may be sanctioned for their failure to cooperate, which illustrat es the important nature of discovery proceedings

. See, e.g ., T EX .R.C IV .P. 215.2 (discussing sanctions that can be imposed in the discovery process); see also Horizon Health Corp. v. Acadia Healthcare Co., Inc., 520 S.W.3d 848, 884 (Tex. 2017) (citing Bodnow Corp. v. City of Hondo , 721 S.W.2d 839, 840 (Tex. 1986)(per curiam)(disc ussing discovery sanctions). I view the discovery d ifferences identified by Double Eagle between AAA and JAMS as being illustrative of the materiality of the arbitration rules. In addition to discovery differences, other differences are easily noted from the ex c erpts of rules included in the record. For example, there are differences in the rules regarding where and when an arbitration will ta ke place and the general time lines for conducting the arbitration itself. 4 Further, as discussed in more detail below, each organization has its own set of rules governing the procedures for selecting an arbitrator, for disqualifying an arbitrator, and for appointing a substit ute arbitrator when necessary. Thus, I conclude there are fundamental differences between

4 Rule 24 of the AAA rules allow the arbitrator to “set the date, time, and place for each hearing.” On the other hand, Rule 16 of the JAMS Rules specifies that a hearing will commence within 60 calendar days after the cu toff for percipient discovery.14

the rules of AAA and those of JAMS, and these differences show that the selection of the governing provision i s a highly material and essential term of the parties’ agreement. In support of its alternative argument, Doubl e Eagle provided a case nearly on point from a California intermediate state court. I n Flores , the agreement failed to define whe ther disputes would be subject to arbitration before AAA or through the procedures contained in a collective bargaining agreem ent. 5 In giving effect to the parties’ mutual intent at the time of contracting,
Flores held the ag reement was ambiguous regarding “the governing rules and procedures for any
such arbitration

. ” Flores, 7 Cal.App.5th at 11 , 212 Ca.Rptr

. at 2 92

. Commenting that it was unclear what bearing the Flores case ha d on the case at bar , the

m ajority rejected Flores as not being persuasive. I view Flores differently. In Flores , the California court merely applied a basic tenet of contract law not materially different from the principles of contract interpretation applied in this state. See, e.g ., T.O. Stanley Boot Co., 847 S.W.2d at 221 (“In order to be legally binding, a contract must be sufficiently definite in its terms
so that a court can understand what the promisor undertook .”). Having concluded that there are in fact material differences in the governing rules of the two arbitration organizations, and that we
must apply both rules to the parties’ arbitration without exception , I conclud e that the parties’ arbitration agreement is ambiguous and therefore unenforceable. Given that the arbitration clause itself excludes the application of the Federal Arbitration Act, I find no assurance that this irreconcilable issue can be reconciled easi ly with the aid of the Federal Arbitration Act as the

5 In Flores , t he arbitration agreement additionally stated that the AAA rules would apply to the parties’ arbitration, but as the plaintiff

— who opposed the arbitration

— pointed out, AAA had, at the time, “‘ multiple sets of rules

— currently 69 separate sets, in cluding ‘labor arbitration,’ ‘employment arbitration rules and mediation procedures,’ ‘non

- binding arbitration rules,’ and ‘employee benefit plan’ rules, among many others. ’ ” Flores, 7 Cal. App. 5th at 5, n.2, 212 Cal.Rptr. 3d at 287 , n . 2.15

majority seems to suggest.

The Significance of Selecting an Arbitration Organization Perhaps more importantly, there is an additional concern about the parties’ purported arbitration agreement that I will address. Not only do the two conflicting sentences provide for rules from two separate arbitration organiza tions , these sentences broadly describe administration by two different a rbitration organizations

. The express terms provide that the arbitration must be “administered by the American Arbitration Association , ” and “shall be administered by JAMS

. ” In my view, t hese opposing requirements about arbitration administration raise further concerns that are both practical and jurisdictional

. T he selection of an arbitration organization to administer an arbitration is akin to the selection of a forum . It is an integral and material element of an arbitration agreement. As recognized by several federal courts, when the parties have designated an organization to administer their arbitration, and have indicated that this is the exclusive or only “forum” in which they wish their arbitration to take place, if that organization is unable to administer the arbitration, the arbitration agreement is co nsidered void and unenforceable. See, e.g., MacDonald v. CashCall, Inc , 883 F.3d 220, 23 2

- 233 (3d Cir. 2018)(finding that forum selection clause in an arbitration agreement was an integral part of the arbitration agreement, thereby rendering the agreement invalid where the s elected forum was unavailable); Parm v. Nat'l Bank of California,
N.A

. , 835 F .3d 1331, 1338 (11th Cir. 2016) (refusing to enforce arbitration agreement where selected fo rum was not available, and where the selection was integral to the p arties’ agreement t o arbitrat e); Inetianbor v. CashCall, Inc. , 768 F.3d 1346, 135 3 (11th Cir. 2014) ( refusing to compel16

arbitration where selected arbitration forum was unavailable, despite the presence of a severability clause , where the foru m selection cl ause was integral to the parties’ agreement). Here, with the parties selecting two different forums to administer their arbitration, and each having their own set of governing rules , the court has no means to give effect to the parties’ agreement. As a practical matter, if this controversy is sent back to the trial court with instructions to comp el arbitration, as the majority demands, there is an impossibility of the parties’ presenting themselves in two independent forums at the same time. Will they p resent their arbitration agreement to JAMS or AAA? And will either organization accept the agreement for arbitration given the mandatory nature of opposing terms ?
To initiate an arbitration proceeding, each arbitration organization requires the parties to present a valid arbitration agreement, indicating that the parties have selected the organization to administer the arbitration and that they are willing to abide by the organization’s rules, together with a fee payment. See, e.g., Chesapeake Appalach ia, LLC v. Scout Petroleum, LLC , 809 F.3d 746, 762 (3d Cir. 2016), cert. denied , 137 S.Ct. 40, 196 L. Ed.2d 27 (2016)(noting that Commercial Rule 4 of the AAA states that “[a]rbitration under an arbitration provision in a contract shall be initiated by the initiating party (‘claimant’) filing with the AAA a Demand for Arbitration, the administrative filing fee, and a copy of the applicable arbitration agreement from the parties' contract which provides for arbitration.”); Cent. States, Se. & Sw. Areas Pensio n Fund v. Allega Concrete Corp., 772 F.3d 499, 501 (7 th Cir. 2014) (discussing AAA’s fee structure, and noting that a party must pay fees to AAA when demanding arbitrati on); Seven Hills Commercial, LLC v. Mirabal Custom Homes, Inc., 442 S.W.3d 706, 723 ( Tex.App.

-- Dallas 2014, pet. denied)(noting that JAMS rule 26(a) states: “Each Party shall pay its pro - rata share of JAMS fees and expenses17

as set forth in the JAMS fee schedule in effect at the time of the commencement of the Arbitration, unless the Parti es agree on a different allocation of fees and expenses

. ” ). An arbitration organization may decline to accept a case for arbitration if the parties do not agree to the organization’s authority to administer the arbitration and/or do not agree to abide by the organization’s rules. See generally Cobarruviaz v. Maplebear, Inc., 143 F.Supp.3d 930, 937

– 38 (N.D. Cal. 2015) (noting that JAMS declined to arbitrate the parties’ claims where the parties’ arbitration agreement failed to comply with the organization’s minimum standards).
The Significance of Selecting an Arbitrator And finally, I find it significant that the selection of an arbitration organization to administer the arbitration will, in this instance, determine how an arbitrator will be selected , and who that arbitrator will be

. In their agreement, the parties did not choose an arbitrator, nor did they set forth any criteria for the selection of an arbitrator; therefore, the arbitrator will be selected by the method set forth by the arbitration organization that is administering the arbitration, and from a list of one of the organization’s approved arbitrato rs. See, e.g., Hamlin v. Dollar Tree Stores, Inc., C.A. No. 2:17

- CV

- 2648

- PMD, 2017 WL 6034325, at *3 (D.S.C. Dec. 6, 2017)(if the parties do not agree on an arbitrator, JAMS facilitates the selection of an arbitrator from its list of approved arbitrators ) ; Fleming Companies, Inc. v. FS Kids, L.L.C., No. 02

- CV

- 0059E(F), 2003 WL 21382895, at * 2, n.6 (W.D.N.Y. May 14, 2003) (recognizing that the AAA Commercial Rules provide that if the parties have not appointed an arbitrator and have not provided any other me thod of appointment, AAA sends an identical list of names of persons chosen from the AAA’s panel of arbitrators, and if the parties still cannot agree, AAA ultimately has the power to appoint an arbitrator of its choosing); Kendall Builders, Inc. v. Chesso n, 149 S.W.3d 796, 801 (Tex.App.

--18

Austin 2004, pet. denied) (noting that in accordance with the AAA’s governing rules, the parties
selected a neutral arbitrator from an AAA

- approved list of arbitrators); s ee also Roehrs v. FSI Holdings, Inc., 246 S.W.3d 796 , 807 (Tex.App.

-- Dallas 2008, pet. denied)( recognizing that R

- 12 of the AAA commercial arbitration rules require an arbitrator selected by the parties to meet the standards of AAA’s rules with respect to impartiality and independence unless the parties hav e specifically agreed otherwise). The question of who will serve as an arbitrator , to decide the question of arbitrability in the first instance , and thereafter preside o ver the arbitration proceeding itself, is a fundamental step in
t he arbitration proc ess raising jurisdictional concerns

. As the Texas Supreme Court has recognized, a rbitrators derive their very “ power from the parties' agr eement to submit to arbitration,” and they have no independent source of jurisdiction apart from the parties’ consent

. See Americo Life, Inc. v. Myer , 440 S.W.3d 18, 21

– 22 (Tex. 2014) (citing City of Pasadena v. Smith, 292 S.W.3d 14, 20 (Tex. 2009); I.S. Joseph Co. v. Mich. Sugar Co., 80 3 F.2d 396, 399 (8th Cir. 1986)); see also Dawson v. Wells Fargo Bank Nat'l Ass'n , No. 09

- 15

- 00035

- CV, 2015 WL 9311676, at *4 (Tex.App.

-- Beaumont Dec. 23, 2015, no pet.) (mem. op.)

. Therefore, a rbitrators must be selected pursuant to the method specif ied in the parties' agreement, and an “ arbitration panel selected contrary to the contra ct

- specified method lacks jurisdiction over the dispute. ”
Amer ico Life , Inc. , 440 S.W.3d at 21 (citing Brook v. Peak Int'l, Ltd., 294 F.3d 668, 672

– 73 (5th Cir. 2002) )

. Accordingly, courts “do not hesitate to vacate an award when an arbitrator is not
sel ected according to the contract

- specified method.” Id . (citing Bulko v. Morgan Stanley DW, Inc., 45 0 F.3d 622, 625 (5th Cir. 2006)).19

In Americo Life, the parties’ arbitration agreement contained an express reference to the criteria to be applied in selecting an arbitration panel , but also stated that the AAA rules were to govern the arbitration. Id . at 20

- 21. The AA A rules, however, provided for different selection criteria than t he arbitration itself did. Id . at 21. The Court held that it was ab le to reconcile this conflict, finding that, although a reference to an arbitration organization ’s rules in an arbitration agreement generally incorporate s that organization’s rules into the agreement, the rules are only incorporated to the extent that the y do not conflict with an express term in the agreement; in the
event of a conflict, the express term in the agreement on a particular matter will take precedence over the general reference to an organization’s rules

. Id . at 24

- 25; see also Dastime Group Ltd. v. Moonvale Investments Ltd., No. 17

- CV

- 01859

- JSW, 2017 WL 4712179, at *5 (N.D. Cal. Oct. 11, 2017) (recognizing that where an arbitration agreement refers to an organization’s governing provisions, but contains an express provision in conflict with those rules, the expression provision controls). The Court noted, however, that the arbitration panel in that case was formed in accordance with the AAA rules, rather than the express terms in the parties’ agreement

. Americo Life , Inc. , 440 S.W.3d a t 21. The Court therefore found that the arbitration panel was improperly formed, and therefore had no authority to preside over the parties’ arbitration and/or to resolve its dispute. Id. at 25 (citing City of Pasadena, 292 S.W.3d at 20; I.S. Joseph Co. , 803 F.2d at 399 )

. Accordingly, as the arbitrator did not have jurisdiction to enter its arbitration award, the Court vacated that award. Id. at 25; see also Cargill Rice, Inc. v. Empresa Nicaraguense Dealimentos
Basicos , 25 F.3d 223, 226 (4th Cir. 1994)(“Arbitration awards made by arbitrators not appointed under the method provided in the parties' contract must be vacated.”).20

Here , because the parties did not provide any express terms relating to the selection of an arbitrator, and instead, they s et forth mandatory terms requiring two sets of governing rules that provide different methods for selecting an arbitrator , I would conclude that the parties failed to agree on the material term o f how a n arbitrator will initially be selected. B ecause the arbitration agreement ranked both organizations equally and did not specify wh ich of the two w ould make th e appointment , I have concerns that an a rbitrator a ppointed under these circumstances w ould be subjec t to a jurisdictional attack , as occurred in Americo Life, Inc. , 440 S.W.3d at 21

– 22

. 6 CONCLUSION
In sum , first, I would affirm the trial court’s denial of the motion to compel arbitration on the basis that the purported arbitration agreement is not a valid arbitration agreement and does not support compelled arbitration

. Second , a bsent a binding arbitration agreement, I would conclude that there is no need yet to address the affirmative defense of whether the agreement was procedurally and/or substantively unconscionable. See T EX .R.A PP .P. 47.1

. August 24, 2018 GINA M. PALAFOX, Justice Before Rodriguez, J., Palafox, J., Larsen, Senior Judge Larsen, Senior Judge (Sitting by Assignment) Palafox, J. (Dissenting)

6 Although this jurisdictional issue was not directly raised by the parties, I note that courts should generally consider jurisdictional issues as they arise at any stage of the proceedings, whether raised by the parties or not. See, e.g., Good Shepherd Me d. Ctr., Inc. v. State , 306 S.W.3d 825, 837 (Tex. App.

-- Austin 2010, no pet.) (recognizing that a court should consider the matter of subject matter jurisdiction sua sponte, as the court’s power to hear a case depends on it); see also J.P. Morgan Chase Bank, N.A. v. Del Mar Properties, L.P., 443 S.W.3d 455, 458

– 59 (Tex. App.

-- El Paso 2014, no pet.) (b ecause the question of jurisdiction is fundamental, an appellate court may address it at any time, even sua sponte ).